The World of Document Review #3 Diversity, Law Schools and the Big Law Track

In my previous post, I said I would lay out the meta-narrative that created the diversity I witnessed in the “pop-up” law firm of document reviewers at the orientation in the ballroom of the Hilton in D.C.  It was an orientation for a huge merger, and my former law firm, Arnold & Porter, was the lead counsel, with other big law firms joining in. The question I asked in the post was whether the diversity I saw really rocked or whether it reflected a sad fact. The meta-narrative for my purposes begins in 1986, when I graduated from Georgetown University Law Center.

I worked my butt off in law school and it paid off. In the first year I graded on to the law review by being in the top seven percent of the class. Back then, in some schools you could clinch a spot on the coveted law review based solely on your grades; you didn’t have to compete for a spot by “writing on,” which required submitting a law-review type of paper to be assessed by the review’s board.

That result put me on a trajectory that was typical for students at the top of the class, one that in many cases would include working in a large law firm such as Arnold & Porter, what today we call Big Law, after graduation. That trajectory involved few persons of color, as was the case in my class of ’86. Why? Many of you know why, but I’m going to say a few things about this for my readers who haven’t been steeped in this stuff.

The first reason is that law schools, especially the top ones that are feeders to Big Law, weren’t diverse. They’ve made progress since then, but the numbers are still not great, or even good. Using the U.S. News & World Report 2017 rankings—which are in a love/hate relationship with law school deans—the top three law schools, Yale, Stanford, and Harvard, in terms of diversity rank thirty-eight, forty, and thirty-five, respectively. None of the top ten law schools, except for Cornell, are in the top twenty-five. Georgetown comes in at 135! (I might be a bit off—I kinda lost count after 100.)

Second, once admitted, minority law students don’t perform as well academically as their white counterparts, with very few landing in the top ten percent of their class, which is a hard cut-off for many Big Law firms. There’s a ton of literature exploring why that might be the case. It would be crazy to describe it all here. But there’s an interesting 2015 empirical study by Alexia Brunet Marks and Scott Moss revealing that even after controlling for, among other things, LSAT score, undergraduate GPA, college quality, college major, and work experience, students of color graduated from law school with significantly lower grades.

Why might that be the case? The authors suggest that the nature of legal education plays a role, including the alienation that students of color experience in and out of the classroom. Relying on studies of human cognition, they also suggest that teachers bring an unconscious bias when it comes to grading non-anonymous seminar papers or class participation. Another reason relates to the “stereotype threat,” a contested idea which posits that if  “your group,” e.g., minorities, (remember independent presidential candidate Ross Perot’s use of “you people” and “your people” to refer to both victims and offenders of inner-city crime when speaking to the NAACP’s national convention in 1992? Oops, you weren’t born then…) is negatively stereotyped in some way, such as poor academic performance, you may also perform poorly because of the anxiety you feel from laboring under the stereotype. Deborah Merritt of Ohio State’s Moritz College of Law also suggests that students of color may also lack the social capital that may help them achieve academically: Many might be the first in the family to go to law school, let alone college. They haven’t grown up within a network of lawyers among family and friends that can support them as they slog through law school—and help them get a job.

I’ve just shared with you some stuff in papers and studies. But I’ve lived through and seen this stuff. When I was at Georgetown there was an undercurrent of resentment towards students of color coming from a segment of white students: We didn’t belong there and were taking the seats of far more qualified candidates. As for alienation and subconscious bias, don’t take it from me. Read my posts with excerpts from my student’s article chronicling the perils of navigating through law school as a woman of color. The stereotype threat and anxiety? If you think that’s a flimsy excuse, think about being assaulted, and I mean assaulted, by UCLA Professor Richard Sander’s much criticized 2004 study suggesting that black law students are ill-served by affirmative action that places them in the elite law schools where they struggle academically. They should instead go to lower-ranked schools where they can thrive and increase the number of blacks in the legal profession. I can’t tell you how many students came to my office traumatized by that guy’s words.

How did I make it to Big Law and become a law professor despite all of these headwinds? It might have something to do with that social capital thing. I didn’t have lawyers among family and friends. But my father was a diplomat who later in life got a PhD from Louisiana State University. My mother became a socialist and relished political debate. So I grew up in an academic environment. I was comfortable in it.

But the most important reason for achieving what I wanted despite a road littered with obstacles was that I didn’t give a shit.

After almost dying and becoming a quadriplegic just before starting law school, the doubters and the haters were the least of my worries.

And if they tried anything, I’d go super-cripple on them.


On that happy note, tune in next time for a continuation of my take on the meta-narrative that gave rise to the pop-up law firm.

Wheelchairs + Tennis = Life Narratives # 7 A Holocaust Survivor, Torture, and Profanity

Chapter Three

Kansas City’s “Wheel It Forward”

         When you think about it, life is an experience of individual narratives that live and breathe in collective spaces. Sometimes those spaces can be dark, violent, and hopeless. But others offer the light of grace, peace, and human potential. Sometimes we can choose the spaces to inhabit but many times we can’t. The spaces choose us. Some might call that fate, while others see it as pure luck. Maybe it’s a bit of both. Regardless, the critical question is whether you, with the help of others, can push yourself through the dark spaces you might find yourself in and find the door to the spaces that celebrate life.


I didn’t choose to inhabit the space of the ICU. I didn’t choose to be part of the ICU’s narrative. Not as a patient, at least. But there I was, the puzzle that had to be solved within a narrative that, as I’ve said, includes a range of characters, each playing their roles, each bringing their own narratives to the ICU.

The minutes turned into days for the puzzle, the days into weeks, and the weeks into months in the ICU. Every day was a ritual of what I’ve called “micro-hope.” Not the grand plans of a life narrative, but the hope of just getting through the day, hoping that on that day there would be some sign of the reversal of my paralysis as the myelin sheath would start to repair itself and allow my brain to communicate with the rest of my body, starting at the top. (GBS starts at the extremities and moves up; when movement returns, it comes back in the opposite direction.) I didn’t ask for much. A barely perceptible movement of a frozen eyelid would’ve made me deliriously happy. But on that day my micro-hopes would be dashed. The ritual would resume the next day, and the next, and the next, and the next.

Just about every day, Doctor Wisen, my neurologist and a major character in the ICU narrative, came to my bedside to inspect his puzzle, almost like a coroner inspects his corpse. Whether by voice or visage, he showed little emotion, as if doing so would jeopardize his much-prized “I’m-a-genius-neurologist-who-is-dour-by-nature” bedside manner. But what was his subtext, what was beneath that man in the white lab coat? Why was he so inscrutable, so aloof?

Maybe this is why, at least in part: Mark Wisen was born in 1934 in Lublin, Poland. A Jew, born in Poland, in 1934. You know where this is going, right? He and his mother survived the Holocaust and emigrated to South Bend, Indiana in 1950. South Bend? Why there? Because one Frederick Baer, Esq. lived there. He was Mark’s mother’s cousin who became a Nuremberg prosecutor and made it his mission to find relatives who survived the Shoah.

Studies have found that Holocaust survivors are remarkably resilient and lead pretty stable and successful lives. Mark became an accomplished doctor and enjoyed a loving marriage. But the horrific trauma suffered by survivors lurks deep within their psyches. They’re pretty good at keeping it there. But sometimes trauma surfaces violently and causes havoc with devastating consequences. I know this. Dr. Wisen knew this. How do we cope? In many ways. Including being inscrutable, aloof.

And there he was, a Holocaust survivor born Lublin, staring down at a young man born in Chicago, in the ICU of Bloomington Hospital, being tortured day after day. The most he could do was monitor the dosages of steroids, and poke and prod to see if any part of his puzzle would react. Nothing.

That I was being tortured is not an overstatement. Think about it. Counting every second, every moment, every hour, every night, and every day. Being totally paralyzed, I mean totally paralyzed, blind because your eyelids are taped shut to protect the corneas. . . But here’s what made the torture exquisite: I was totally aware of everything and I felt everything. I was aware of the tangle of tubes I was hooked up to. I was aware of the constant beeping of the heart monitor. I was aware of the endless needles being stuck into me to draw blood. The worst was checking my “blood gas,” or the arterial blood gas draw to see, in essence, how well my lungs were functioning in terms of oxygen and carbon dioxide. I dreaded the nurse who came into my room and uttered those words because I knew she would stick a needle deep into my wrist to find the radial artery. It was excruciatingly painful, especially when the nurse couldn’t find the artery and would probe my wrist relentlessly.  To the onlooker, I was a body at peace, the peace of complete paralysis. But inside I was screaming at the top of my lungs.

And, of course, I was aware of the ventilator that unfailingly kept pumping my lifeless lungs with oxygen. It became my friend, in a weird way, the rhythmic sound of the pump assuring me that I would not suffocate. But there were times when, because of fluid buildup in my lungs, I didn’t feel like my friend was giving me enough of what I needed from it. I needed more oxygen, immediately, I felt. Suddenly, my friend had become my executioner, putting me to death as the heart monitor’s beeps ticked away my last moments on this earth. “Please, I want to live! Please! Someone! Help me!” When my eyelids weren’t taped down, my eyes would bulge and move wildly in my sockets. I recall on one occasion a nurse happened to be by my bedside when I was in the throes of suffocation. She said pathetically as she rubbed my arm, “Oh, honey, what’s the matter?” “I’m fucking dying, you idiot! Get your hand off of me and do something!” “Poor thing. . .” “Fuck you!”

But the truth of it is that the nurses worked as a team to keep me alive. They were there 24/7 working in the trenches of the ICU narrative to do everything possible to help me survive, constantly assuring me that survival was worth it. They did everything to preserve my body while I was helpless. To prevent bed sores and fluid buildup in my lungs, every four hours they came into my room and turned my body, from laying on my left side, to on my back, then on my right. They fed me through my g-tube, emptied and measured my urine bag, emptied my bedpan, gave me my medications, and kept me clean: sponge baths, so humiliating—I had no “private parts.” And periodically throughout the day, a nurse would go through a range of motion routine, moving my arms and legs around in various angles to prevent my body from freezing up like rigor mortis. A seemingly dead body, but alive inside. Despite having to cope with trauma in their lives, they clocked in every day, came into my room, and told me I wouldn’t die, not on their watch.

Wheelchairs + Tennis = Life Narratives # 6 The tournament idiot

Here’s the last excerpt from chapter two of my book. It’s about the Cajun Classic’s tournament idiot.

My first match in the C division was against Troy Eap, an easy going guy in his 30s who hailed from Upper Darby, PA.  He became a paraplegic in 2009 after a 1,200 pound slab of granite fell on him and crushed his spine. (How long did it take him to become easy going after such a horrendous accident?) I should’ve been nervous as I was taped up and strapped into the wheelchair. Actually I should’ve been throwing up. Prior to that match, I had never played a full set of tennis in a wheelchair. What the hell was I doing playing in one of the biggest, most prestigious tournaments in the country?

I was clueless. And when you’re clueless, you don’t feel fear or embarrassment.

At that point in my tennis career, it took me about half an hour to prepare for a match. A volunteer had to help me with everything. Let me take a moment to tell you about these great folks. They’re men and women and boys and girls who’re critical to running the tournament, especially one the size of the Cajun Classic. You start with the organization that puts the whole thing together. For the Cajun Classic, it’s the Baton Rouge Wheelchair Tennis Association, an all-volunteer, non-profit outfit that evolved from trauma: In 1983, a tennis coach’s godchild became a quad after being in a car accident and tennis became a way to help the kid cope with her transformed body.

Then you have the tournament director who coordinates the whole event and all of the volunteers. Jennifer Edmonson, the Cajun Classic’s director, works with a committee of volunteers who in turn coordinate the work of all the other volunteers. In the big tournaments, there’s also a person who’s a conduit for information between the director and the players, especially relating to logistics such as gathering information from the athletes about flight arrivals—Marilu Major is that person at the Cajun Classic. The volunteers “in the trenches” range from persons who serve food to the athletes to mostly kids who fetch balls during the match. It’s not uncommon to have volunteers who are nursing or physical therapy students. For some, it’s the first time seeing the game and working with wheelchair athletes.

Interestingly, virtually all of the volunteers at the tournaments are able-bodied. Why is that? Hmmm . . . Maybe there’re practical reasons. For example, it might be difficult for a person with a disability to serve food to the athletes. If I were to try that, half of the food would end up on the floor because of the severe weakness in my hands. But would paraplegics have the same problem? I doubt it. When you really think about it, a person with physical challenges could do most of the things an the tournament, including fetching balls.

So what gives? Well, even though most of us could do the stuff, it may take longer for us to do it. I could tape a serving spoon to my hand, but scooping out jumbalaya to a hundred people would take longer than it would for servers without my physical challenges. Those of us with disabilities—I’ll use “disabilities” and “physical challenges” interchangeably—know that doing activities of daily living may take three times longer or more to accomplish than our able-bodied friends. In the morning, an able-bodied person can hop out of bed when the alarm sounds and jump in the shower within a minute. A paraplegic may have to use a “transfer board” to move from her bed to the wheelchair, and use the board again to transfer from the wheelchair to the shower chair. This takes time, much more than a minute. An able-bodied person or a para can button a shirt in seconds. I have to use a “buttoner,” an assistive device that hooks the button and pulls it through the button hole. Sometimes it takes me literally five minutes to deal with one button. All of this is to say that although persons with physical challenges could do most of the things at tournaments, cumulatively the additional time required to do those things would slow the tournament way down, which would be a real problem when you’re trying to pack a tournament into just a few days. But it’s not as if the organizers turn away volunteers with disabilities. Within any possible pool of tournament volunteers, only a very small fraction would be persons with disabilities.

In a way, the able-bodied/challenged-bodied dichotomy is useful for another important reason: It gives volunteers an opportunity to do something that’s meaningful for them. Perhaps one person does it because she’s a therapist and profoundly supports, and wants to contribute to, an event that celebrates the human spirit. Another does it for profound religious reasons. Yet another volunteers out of civic duty. And perhaps there are those who think wheelchair tennis rocks and want to see it up close. I say, right on to all of these motivating factors! All the tournament’s participants get something really valuable out of it that can’t be quantified in many cases. And it’s not pity, whether of oneself or others. Besides, if I can get an extra brownie out of a volunteer, awesome!

Getting back to my first match, I needed help with just about everything. Sports wheelchairs don’t have brakes, so someone had to hold the chair while I literally fell into it—once I bend my knees I go into a freefall because of the extreme weakness in my upper legs. After I got the right sitting spot on the chair, someone had to tighten my lumbar brace around my lower trunk. I did this because my trunk muscles are weak—but not paralyzed. Without the brace, back then at least, I would wreck my back after repeatedly trying to turn the chair on a dime and swing the racquet during the match.

After my brace was in place, a volunteer took my Velcro belt and strapped my hips tightly to the chair. Next came my feet. The footplate is underneath me. Because of my paralysis below the knees, a volunteer had to take another Velcro belt and secure my feet tightly to the footplate. Then I put a baseball glove on my right hand with a tacky palm to give me a good grip on my rims. Finally came the racquet and the taping procedure I told you about. Once that was done, I always prayed that I wouldn’t have to use the bathroom. Talk about panic!

When Troy and I were both ready, we rolled to the middle of the net, where the ref explained the format–the best two out of three sets wins–and tossed the coin to determine who would serve and receive. Troy won the toss and he elected to serve. The warm-up before the match should’ve given me a clue that I was facing imminent disaster. I missed almost every ball he hit to me. If I did hit it, it went sailing to Beijing or somewhere close to it. If the ball didn’t come straight to me, I could hardly move my wheelchair to get to it. But I had no fear. I wasn’t embarrassed.

As we warmed up, I kept running the fundamental strategy of wheelchair tennis through my head. If you look at able-bodied tennis, most of the balls are struck at the baseline or a bit further back. If your opponent hits the ball to the right side of the court, you move quickly to the ball, return it, and, in most cases, return quickly along the baseline to the center of the court. If a short ball comes over the net, you get to it, return it, and volley the next one or, depending on where you are on the court, haul ass back to the baseline at the center.

You use the same principles in wheelchair tennis, but now you have to maneuver the chair, not your legs and feet. So the spot at the center-court baseline is called “the hub.” That’s where you want to be most of the time. If the ball comes to your left, you have to push yourself to the ball and, if you’re a lefty, return the ball with a forehand and then spin your chair to the inside of the court and return to the hub. If you’re right-handed, after you return the ball with a backhand, you spin yourself to the outside of the court and return to the hub. Rarely will you see wheelchair players move into the court for a volley. You only do that when you’re absolutely certain you can get to the ball and put it away. It’s simply too easy for your opponent to lob the ball over you—you can’t jump out of your chair to get the height you need to reach the ball. And unless you’re superfast on the court, there’s no way you’ll get to the ball. The strategy of staying back is especially evident in wheelchair tennis doubles. In the able-bodied game, if you’re serving, your partner will position herself close to the net for the volleys. You won’t see that much in wheelchair tennis. Both players, especially the less skilled, will remain at or behind the baseline.

I don’t remember much after Troy’s first serve. My mind went blank and I forgot everything, much like what happened when I was first called on in law school. He had pity on me, I suppose, because the match finished minutes after it started, 6-0, 6-0. Why prolong the torture? People who watched the carnage might have said, “What in God’s name is that fool doing on the court?” I might have proclaimed in my best lawyer-turned-professor-turned-wheelchair-tennis-player full-throated voice of conviction, “I am Superman!” Then I might have rolled to the stands and autographed tennis balls offered to me by stunned fans. “Look what I got, mom, a tennis ball signed by the tournament idiot!” Yeah . . . clueless.

I was similarly clueless in my consolation match, losing 6-0, 6-0 to my opponent, who constantly asked me if I was alright. But I didn’t stop there. I also lost my doubles match, 6-0, 6-1. I was matched up with Frank Johnson, a Desert Storm veteran from Philly. A single-leg amputee, he was massive, with a commanding height from his wheelchair. That guy could move. I told him to go for the balls I couldn’t get to, which meant virtually all of them. I could’ve eaten a pizza during the match.

But I was having the time of my life. The best on-court experience was my Seniors B/C Doubles match with my partner—the tournament paired me up–Pat Mulvihill, a sixty-five-year-old Vietnam vet from Natchez, Mississippi. Throughout the tournament, I frequently heard people mention him with great fondness. When I finally met him, I could see why.  Just hours before the match, I wheeled up to him and introduced myself. He shook my outstretched hand with a big, welcoming grin. “So you’re the one!” he said in a thick southern drawl. I didn’t know whether he meant that I was his doubles partner or that he had heard I was the tournament idiot. Probably both. Pat lost both of his legs in 1970 when he stepped on a booby-trap during his second tour of duty in Vietnam. A number of years later, when wheelchair tennis came on the scene, he picked up a racquet and fell in love with the game. He told me proudly that he had played in every Cajun Classic—twenty-six years of the tournament. Wow.

We played our match in the evening. It was my first ever wheelchair tennis doubles match. And I had no clue what to do. What little training I had was playing singles. When it was my turn to serve—at that time I used an underhanded serve, I rolled to the middle of the baseline. “Hold it,” Pat blurted out. “You’ve never played doubles, have you?” “Uh . . . no, Pat,” I said in my best tournament idiot voice. With a twinkle in his eye, he showed me how in doubles you have to serve from a wider angle to get the best coverage of the court. “Got it! Thanks, Pat!” “No problem, my friend! Noooo problem! Let’s get ‘em, partner!” Of course, playing out wider made no difference. I continued to flail. But Pat kept encouraging me to stay in the game. We lost. After the match I said, “Pat, this was so much fun. Thanks for putting up with me. I would be honored to play with you again!” “Absolutely, my friend! Just keep at it. Your game will get better!” What a guy.

That was the only time the tournament paired me up with him. Hmmm . . That reminds me of a recent tournament where I was paired up with a French Canadian. That itself spelled trouble. I first saw him at the Cajun Classic. And I’m sure he saw or heard of the tournament idiot. When I saw this fellow at the recent tournament, I approached him and, in my best idiot voice, introduced myself and said I looked forward to playing with him. The first thing he said to me was, “Are you any better?” Like I said, he’s a French Canadian. And I’m the tournament idiot.

The Bayou Boys, my two youngest brothers, Pat and Carlos, came to my matches. Lana, Pat’s partner, made it to a couple as well. I warned them about my game, but they jokingly said they came to the tournament for the good food—and it was really good Cajun stuff according to them. Carlos spent most of the time taking photos of me with his expensive camera—he’s become a great photographer. With his skills, some of the photos of me in action looked like I actually knew what I was doing. Meanwhile, Pat, who inherited my father’s humor, supplied me with a stream of funny one-liners to help me keep my spirits up as I was getting pummeled. Both bro’s are mind-bogglingly good cooks. During a long break in the tournament, we went to Pat’s place and feasted on smoked salmon, boudin sausage, and bottles of red wine while we talked fondly of the glory days.

The days when I played football, ran track, and played tennis for my high school. The days when I took for granted how exquisitely the human body is wired to do so many things for you, from taking a simple step forward to swinging a tennis racquet. The days when I was invincible. . . and not the tournament idiot.


Wheelchairs + Tennis = Life Narratives # 5 “You can walk!” Sorry?

Here’s the next excerpt from chapter two of my book. It continues the narrative relating to my experiences at my first tournament, the Cajun Classic in Baton Rouge Louisiana.  It’s about walking:

The tournament’s first logistical task was to get 125 athletes, many of whom were from abroad, from the airport to the tournament site, the Lamar Tennis Center, a twenty-court facility at a YMCA complex in Southwest Baton Rouge. The tournament’s organizers asked the athletes to provide their flight information so that wheelchair-adapted vans with volunteer drivers could be at the airport to pick up them up. Like I said, one of the factors the ITF takes into account in sanctioning a particular tournament level is the availability of transportation. This is especially important for ITF 1 tournaments because of the large number of international players. Unless they have an able-bodied companion, such as a coach—a number of the European players travel with a coach—they can’t rent a car. Even if they could, given tight budgets, having tournament-provided transportation really helps keep down the overall costs of participation. A number of internationals told me they struggle financially to play in the tour. When you get into the lettered divisions, especially in smaller competitions, tournament-provided transport might not be that crucial because a good number of players drive to the tournaments with their parents, partners, or friends.

Unlike most wheelchair tennis athletes, I’m ambulatory, using a cane when I have to, like when I’m taking a long walk outside or dealing with uneven ground. As I walked to baggage claim with my tennis bag, I saw a bunch of other athletes who arrived at about the same time. They were all in their “day chairs,” as opposed to their sports wheelchairs, which they checked for the flight. Because of the camber, which makes it hard to get through most doors, virtually none of the athletes use their sports chairs unless they’re on the court. They push their sports chairs with one hand as they enter the court and then transfer from their day chairs.

When I saw them I immediately felt really awkward, maybe a bit guilty. I felt like an outsider. I could walk but they couldn’t. I was looking down at them, which felt like I was looking down on them. I felt like I had to get into my sports wheelchair ASAP. But doing that would itself be awkward.  I didn’t matter to me. The sooner I could get into the chair, the better. I wanted to be like them so I could be with them. Maybe they would talk to me. Maybe they would accept me. Maybe we would exchange smiles, become friends.

So when I got to the Lamar Tennis Center, I didn’t walk when I easily could have. No, I felt I had to be in a wheelchair at all times to fit in, even though I was in a sports wheelchair. As I rolled around the site, other athletes in their day chairs gave me a baffled look. “Why aren’t you in your day chair, mate?” I imagined one of the Brit players asking me. More likely, they were saying to themselves, “First time, is it? Get a clue, mate.” It was only after going to a number of tournaments that summer that I realized the “etiquette” was to stand up and walk if you can. I remember the first time I got out of my wheelchair and walked among athletes in their day chairs. One of them exclaimed, “You can walk!” I froze, not knowing what to say. Maybe “sorry?” What they were really saying, the subtext, was, “Don’t be stupid and sit in your sports wheelchair when you’re lucky enough to walk!”

On Being A Female Law student—and Puerto Rican #3 The Subtext of Ora Williams

“Raise Your Hand: A Burden and a Duty”

This excerpt from Kristymarie’s article addresses the complexities of race and gender in the academic world, especially the classroom. Before we get to it, I want to share with you the complexities from my  end, the prof facing his students in class.

It’s really tricky raising issues of race and gender (and class), especially when the course appears to be completely unrelated to those topics, such as Contracts, which I taught for twenty-four years. There are, in fact, many cases that deal with important concepts of contract law within compelling narratives of race and gender (and class).

For example, there’s a famous 1965 case, Williams v. Walker-Thomas Furniture Co., that teaches students the concept of “unconscionability.” Now before I talk about this case, let me preemptively tell law students (and profs) who might be reading this to take a chill pill. I’m writing this for lay readers. We’re not in class, and I’m not giving a faculty talk. Okay? So back off!!! Thanks so much! Smiley face: 🙂It fixes everything.

The idea behind unconscionability (I’ve always struggled to spell that) is that a court can decide a contract, or a provision of it, should be nullified because it’s outrageous. Here are some of the facts, the “text” of the case’s narrative: The year: 1962. The place: Washington, D.C. Ora Williams bought some furniture from Walker-Thomas. She signed an installment contract with an obscure and incomprehensible provision that in effect allowed the seller to repossess all of the furniture she bought from the seller over the years if she defaulted on a payment for the furniture at issue in the case.  Ora did default and sure enough the furniture company went after all of Ora’s furniture from the store.

The trial court sided with Walker-Thomas. Ora then appealed to the higher court. That court condemned what Walker-Thomas did but said it couldn’t find any law that would allow it to nullify the contract. Ora then appealed to the highest court in D.C. and it landed on the lap of Judge Skelly Wright, a judge well known for fighting on behalf of the poor and marginalized. He concluded that the D.C. courts did have the power to nullify contracts based on unconscionability. He told the trial court to look for facts that related to the concept so that a decision could be made either way on that basis.

There’s the text—that most students easily focus on. And wish that was it. But I didn’t stop there. I was going to lead them into the case’s “subtext.”

And the class discussion would become both extremely fascinating and extremely uncomfortable for the students.

Please, no!

Too late to drop the class now. It’s mandatory anyway. So don’t even think about bolting for the door.

Does the opinion describe Ms. Williams? The students appear to scour the casebook but they’re actually praying I won’t call on them or they’re silently cursing me out. Most likely both. Regardless, they don’t look up, fearing they’ll make eye contact with me, which might lead to being called on.

Little by little, I draw out more facts in the opinion that they glossed over and push them inexorably into the subtext:

  • She received a “monthly stipend from the government.” She was on welfare.
  • She had to support “both herself and seven children.” She was a single mother. With seven children. Seven.
  • What did she buy? A stereo set from Walker-Thomas Furniture Co. for $514 (which is just over $4000 today). What again was the furniture in question? A stereo set. How much? $514.
  • Did the second court say anything about the relationship between the buyer and the seller? The judge said the seller knew Ms. Williams was a single mother with seven children and on welfare. And yet it sold her a STEREO SET! A $514 stereo set! The judge said, “We cannot condemn too strongly [the seller’s] conduct.”
  • What does the opinion say about the racial identity of Ms. Williams? They scour and scour desperately but can’t find the passage about her race.
  • Because it’s not there. Why not?
  • Does the opinion say anything the racial make-up of D.C. at that time? They scour. No. It was predominantly black.
  • Does the opinion say anything about the neighborhood surrounding Walker-Thomas? They scour. No. It was poor and black.
  • Was Skelly Wright white? Probably. Yes.

From there I facilitated what was always a difficult discussion, focusing on whether we should take into account the complex subtext. Does justice require this? Or does doing so turn Ms. Williams into an incompetent, irresponsible black welfare queen? Do you think Skelly Wright took into account Ms. Williams’ race? If he did, was he a hero for it? Or was he essentially a benign white administrator of a black colony—District (not state) of Columbia? “If I don’t strongly suggest through my ruling that this type of contract is unconscionable, we might have a black revolt on our hands!”

Say what?

Pretty head-spinning, right? So stressful for the students that they feared going into spasms.

You ain’t seen the half of it. What if you’re a student of color—and female (and/or gay, lesbian, trans, bi or queer)?

Here’s Kristymarie:

“My experiences as a racialized and gendered candidate are not unique. However, my intersecting identities further exacerbate the performance anxiety inherent in a competitive educational environment such a law school. My experience is that racially aware (or charged) commentary during class discussions or during faculty interactions may influence future references or the faculty’s impressions of the candidate. It may also expose the racialized—or racialized and gendered—candidate’s view to scrutiny, from the faculty and fellow students, which is often heightened by the speaker’s otherness.

The racialized and/or gendered other may see class participation as either a burden or a duty. The distinction is subtle: a duty is something one proudly undertakes because one feels a sense of responsibility towards the task. A burden is something one has to do, regardless of how one may feel about the task.

Class Participation as a Burden

In 2014, the UCLA Law School had 1100 students. Of those students, thirty-three, or three percent, were black. Some of these students came together and created a video commentary with the purpose of increasing awareness about UCLA Law’s lack of diversity and the burden of feeling like representatives for their community. The video went viral. Disconcertingly, the students’ feelings are timeless.

Supreme Court Justice and former women’s rights activist Ruth Bader Ginsburg explained that, as one of nine women in the 1956 Harvard Law School first year class of 500, “you felt in class as if all eyes were on you and that if you didn’t perform well you would be failing, not only for yourself, but for all women.” The burden is compounded when the candidate is not only gendered, but also racialized.

Peggy McIntosh, feminist and anti-racism activist, reflected that as a white woman, she “can speak in public to a powerful male group without putting [her] race on trial.” In contrast, Adrien K. Wing, professor and international human rights scholar, reflected on her first year of law school in 1979 and explained that she dreaded participating in class because, “[i]f [she] were found wanting, it might be that the white males would think all people of [her] race or gender were lacking.” However, a white male classmate would not feel the same burden because “[i]f one of them failed to handle the grilling, it would just be regarded as his personal failure.” Fifty-six years after Justice Ginsburg and thirty-three years after Professor Wing did, I experienced the same apprehensions.

Stereotype threat is one of the main factors that turn class participation into a burden. Stereotype threat is the situational predicament in which a racialized candidate fears that their actions will confirm negative stereotypes about their social group. Class participation, to a racialized and gendered candidate, poses the threat of “contempt, censure, judgment, recognition, challenge, annihilation, visibility.”

Lack of participation, however, may be equally harmful. While women of color may use silence strategically, it may negatively affect the educational process. Angela Onwuachi-Willig explains the effects of silence from the academic perspective. The majority members may erroneously interpret silence as a confirmation of the stereotype that women of color do not have anything to contribute to the discussion. Thus racialized and/or gendered law students and law faculty similarly feel a pressure, or a duty, to participate.”